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Eloquence and Reason

Eloquence and Reason: Creating a First Amendment Culture

Copyright Date: 2008
Published by: Yale University Press
Pages: 216
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  • Book Info
    Eloquence and Reason
    Book Description:

    This provocative book presents a theory of the First Amendment's development. During the twentieth century, Americans gained trust in its commitments, turned the First Amendment into an instrument for social progress, and exercised their rhetorical freedom to create a common language of rights.

    Robert L. Tsai explains that the guarantees of the First Amendment have become part of a governing culture and nationwide priority. Examining the rhetorical tactics of activists, presidents, and lawyers, he illustrates how committed citizens seek to promote or destabilize a convergence in constitutional ideas.Eloquence and Reasonreveals the social and institutional processes through which foundational ideas are generated and defends a cultural role for the courts.

    eISBN: 978-0-300-15187-9
    Subjects: Law, History

Table of Contents

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  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xii)
  4. Acknowledgments
    (pp. xiii-xiv)
  5. 1 Freedom as a Matter of Faith
    (pp. 1-22)

    Mostly ignored by the United States Supreme Court for the first hundred years after its reduction to parchment, the First Amendment played a central role in a transformation of American political identity during the twentieth century. During this period, the rights to speech and religion became defining features of citizenship in the nation-state and the enforcement of rights the primary responsibility of the courts. In turn, the reach and intricacy of judge-made law developed well beyond what the gentlemen of 1789 could have foreseen. First Amendment law today defines and demarcates an impressive amount of social life. No longer limited...

  6. 2 Metaphor and Community
    (pp. 23-48)

    Evocative metaphors abound in First Amendment thought. Some are fashioned to remind citizens of cherished ideals; others are calculated to stoke their deepest fears of democratic excess. Expressive liberty means “free trade in ideas,” Oliver Wendell Holmes pronounced in the 1919 decisionAbrams v. United States, creating the imagery of an integrated and efficient economy to promote a legal order in which ideas move easily from willing creators to interested recipients. When a party proposes a more restrictive reading of text, he might caution, as Holmes did in another case decided the same year, that expression should not be tolerated...

  7. 3 Linguistic Transformation
    (pp. 49-77)

    Every faith tradition has its creation stories; the First Amendment is no exception. As lawyers learn, the civic myth that recounts the birth of the right to speak one’s mind in America begins with the missed opportunities of the World War I decisions, and the “end of the story” is the 1969 decisionBrandenburg v. Ohio, in which the promise of expressive liberty is ultimately realized.¹ Despite the proliferation of First Amendment rules for nearly every occasion, it is this overarching narrative of institutional awakening that “lies close to the heart of the American free speech tradition.” Even though the...

  8. 4 Political Pathways
    (pp. 78-111)

    As soon as one accepts that the structure and valence of juridic language are inevitably altered by dynamics beyond the four walls of the courthouse, questions of process move to the foreground. What are the actual mechanisms through which dedicated advocates and activists encourage or pressure official decision makers to adopt new constructions of text? Where are the crucial points of entry into the system of language formation?

    To alter the social foundations of legal language and stimulate linguistic development, motivated actors must exploit available political pathways. Broadly understood, a political pathway is any means by which constitutional knowledge is...

  9. 5 War and Syntax
    (pp. 112-139)

    A misconception has circulated for some time that war is purely an irrational event, a social paroxysm, even the breakdown of the rule of law. The Framers were certainly concerned about the destructive nature of war. “When the sword is once drawn,” Hamilton wrote, “the passions of men observe no bounds of moderation.” Whether out of fear of ascribing normative significance to actions taken under exigent circumstances or fidelity to a text-bound theory of self-governance, scholars, too, have hesitated to confirm that judgments made during a time of war can or should generate foundational change.¹

    Indulging this instinct to downplay...

  10. 6 Adjudication as Facilitation
    (pp. 140-162)

    The establishment of a political order based upon First Amendment ideals during the twentieth century was a collaborative effort of genuine creativity, one that entailed sacrifice and foresight. In helping to maintain or erode linguistic regimes within the law, judges played a major part in the reproduction of constitutional norms. Their participation in the creation of the speech-centered society should prompt a general reevaluation of the judicial function. Some courts claimed to be doing no more than dutifully enforcing self-evident meanings of the Constitution. Others resisted the temptation to obscure their rhetorical autonomy from the public and instead described themselves...

  11. Coda
    (pp. 163-166)

    Americans’ encounters with the First Amendment have inscribed its terms upon their minds, not in a linear fashion but rather in a layered experience in which competing ideas and the methods for characterizing those ideas struggled for salience and priority. Study of this collaborative exercise revealed two imperatives: the imperative of the state to mythologize its existence and the imperative of ordinary citizens to find concrete meaning in their political heritage. To succeed, democratic constitutionalism must navigate the tensions between the search for communal attachments and the refinement of rules to live by. Ignoring the first risks the possibility that...

  12. Notes
    (pp. 167-192)
  13. Index
    (pp. 193-198)